Citation Nr: 9825408
Decision Date: 08/25/98 Archive Date: 07/27/01
DOCKET NO. 95-31 307 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for a bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. McCormack, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1947 to
August 1952. This matter comes to the Board of Veterans'
Appeals (Board) from a Department of Veterans Affairs (VA)
Los Angeles Regional Office (RO) May 1994 rating decision
which denied service connection for a bilateral hearing loss.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Initially, the Board finds that the veteran's claim for
service connection for a bilateral hearing loss is well
grounded under 38 U.S.C.A. § 5107 (West 1991) in that it is
plausible based upon the clinical evidence of record and the
evidentiary assertions provided by the veteran that are
within the competence of a lay party. Murphy v. Derwinski, 1
Vet. App. 78 (1990); King v. Brown, 5 Vet. App. 19 (1993).
Thus, VA has a statutory duty to assist the veteran in the
development of evidence pertinent to that claim. 38 U.S.C.A.
§ 5107; Robinette v. Brown, 8 Vet. App. 69 (1995).
The threshold for normal hearing is from 0 to 20 decibels,
and higher threshold levels indicate some degree of hearing
loss. Hensley v. Brown, 5 Vet. App. 155, 158 (1993).
Impaired hearing will be considered to be a disability for VA
service connection purposes when the auditory threshold level
in any of the frequencies 500, 1,000, 2,000, 3,000 and 4,000
Hertz is 40 decibels or greater; or the thresholds for at
least three of these frequencies are 26 decibels or greater;
or speech recognition scores are less than 94 percent.
38 C.F.R. § 3.385 (1997).
The Court, in Hensley, 5 Vet. App. at 160, indicated that
§ 3.385 does not preclude service connection for a current
hearing disability where hearing was within normal limits on
audiometric testing at separation from service. As stated by
the Court, "[i]f evidence should sufficiently demonstrate a
medical relationship between the veteran's in-service
exposure to loud noise and his current disability, it would
follow that the veteran incurred an injury in service." Id.
at 160, citing Godfrey v. Derwinski, 2 Vet. App. 352 (1992).
The veteran's service medical records show that his hearing
was within normal limits on audiometric testing upon his
separation from service.
On an uncertified audiometric examination conducted in July
1993 at the Long Beach VA Medical Center, the veteran was
diagnosed as having a moderate to severe high frequency
bilateral sensorineural hearing loss. No opinion as to the
etiology of the hearing loss was offered.
At his September 1994 hearing, the veteran testified that he
began having trouble with his hearing during his period of
active military service. He reported that he was exposed to
noise as a rifleman on a mine sweeper where his duties
required disabling mines by shooting at them. He further
reported that he was exposed to noise from aircraft while
stationed on an aircraft carrier. He indicated that the
severity of his bilateral hearing loss increased in the late
1970's and 1980's to the point where he acquired hearing
aides in 1991. He reported that service medical records from
his nearly 14 years of service in the U.S. Naval Reserve
would demonstrate this.
The Board observes that attempts to obtain service medical
records from the veteran's period of service in the U.S.
Naval Reserve have not been successful. The Board is of the
opinion that an additional attempt to obtain these records
should be made as they would be very helpful in determining
if the veteran's bilateral hearing loss is of service origin.
The Board further observes that the veteran has not been
afforded a VA audiological examination with certified
findings and an opinion as to the etiology of hearing loss,
and is of the opinion that a thorough and contemporaneous VA
examination is warranted. Littke v. Derwinski, 1 Vet. App.
90 (1990).
In light of the foregoing, and to ensure that VA has met its
duty to assist the veteran in developing the facts pertinent
to the claim, the case is REMANDED for the following action:
1. The RO should contact the National
Personnel Records Center and/or other
appropriate service department and again
attempt to obtain the veteran's complete
service medical records from his period
of service in the U.S. Naval Reserve.
2. The RO should obtain the names,
addresses, and approximate dates of
treatment for all medical care providers,
VA and non-VA, inpatient and outpatient,
who have treated the veteran for a
hearing loss since his separation from
service. After securing any necessary
authorization or medical releases from
the veteran, the RO should obtain legible
copies of his complete treatment reports
from all sources identified whose records
have not previously been secured.
Regardless of the veteran's response, the
RO should secure all outstanding VA
treatment records.
3. The veteran should then be afforded a
VA audiological examination to determine
the nature, extent of severity, and
etiology of any hearing loss that may be
present. Any further indicated special
studies should be conducted and all
findings must be reported in detail. The
claims folder and a separate copy of this
remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination.
The examiner should be requested to
provide an opinion as to the etiology of
any hearing loss found on examination,
with particular attention directed to the
character of the veteran's service. If
the etiology of his hearing loss cannot
be determined, the examiner should so
state for the record. Any opinions
expressed must be accompanied by a
complete rationale.
4. Thereafter, the RO should review the
claims folder to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the requested examination report
and required opinions to ensure that they
are responsive to and in complete
compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
5. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the veteran's claim of
service connection for a bilateral
hearing loss in light of all the
evidence, including that obtained
pursuant to the development above.
If the benefit sought on appeal is not granted to the
veteran's satisfaction, or if a timely notice of disagreement
is received with respect to any other issue, the RO should
issue a supplemental statement of the case. A reasonable
period of time for a response should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).